NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0094n.06 No. 09-5262 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DAVI D HERNAND EZ , Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE

BEF ORE: COOK, McKEA GUE, a nd ROTH, Circuit J udg es. *

PER C URI AM. David He rnande z appeals his judgme nt of conviction. A j ury found Hernande z g uilty of one count of conspirac y to co m m i t mail and wire fra ud, in violation of 18 U.S.C. § 371, eig hteen counts of wire fra ud, in violation of 18 U.S.C. § 1343, and three counts of mail fra

ud, in violation of 18 U.S.C. § 1341. The district court sentenc ed Her nandez to twenty months in p ri s o n. His convictions arose from the following fac ts. Her nandez was the g ener al manag er of AirTra ns, I nc. (“A irTra

ns”), a trucking company in Dy ersbur g , Tenne ssee. To

cover shortfalls in its daily

cash f low, employ ees of AirTra ns cre ated false bills of lading showing that AirTra

ns was delivering g oods for one of several b u s i n esses. The false bills wer e then submitt ed to Allied Carrie rs Ex chang e (“A llied”), a cooper ative that purcha sed acc ounts rec eivables from truck lines, which would provide immediate pay ment to AirTra

ns. Ai rT rans would

The Honor able Jane R. Roth, Ci rcuit Judge f or the United States Court of Appea ls f or the * Third Circuit, sitti ng by

desig nation.No. 09-5262

United States of America v . Hernande z subsequently provide funds to the business named on the false bill so that it could pay Allied within its ninety -day

pay ment window. On appea l, Her

nandez raises two issues: (1) there was insufficient evidenc e to demonstrate that he devised, intended to devise, or knowing ly participa ted in the fra udulent scheme ; and (2) the district court improperly questioned a juror conce rning whether she concur red in the verdic t

. Be cause Her

nandez fa iled to rene w his motion for judgme nt of acquittal at the close of the evidenc e, he waived any objection to the sufficie ncy of the evidenc e. See United States v. Jordan , 544 F.3d 656, 670 & n.10 (6th Cir. 2008); United States v. Price , 134 F.3d 340, 350 (6th Cir. 1998). Our revie w of this issue is there fore limit ed to deter mining “whe ther t h er e wa s a manifest miscarr iag e of justice.” Jordan , 544 F.3d at 670 (citation omitted). “A miscarr iag e of justice exis ts only if the re cord is devoid of evidenc e pointing to g uilt.” Id. (citation omitted). The rec ord was not devoid of evidenc e pointing to Her nandez’s g uilt. A witness testified that Her nandez was pr esent in the office when the fra udulent bills of lading wer e produce d and that he stated that the bills had to be filled out. Fur ther, the prosec ution prese nted evidenc e that Her nandez took part in meeting s conce rning how much reve nue AirTra ns neede d to g ener ate eac h day and that he instruct ed em p l oy ees on the amount of money that neede d to be made from the bills being submitt ed to Allied

. I n ad d i tion, two witnesses testified that Her nandez direc ted them to forg e signa tures on bills of lading , and one of the witnesses stated that Her nandez instructed her to ensure that the signa

ture looked differ ent from he r own ha ndwriting . Finally , the proprietor of one of the businesses named on t h e fr au d ulent bills of lading testified that he spoke with Her nandez about g etting mone y

from AirTr ans to pay

the bills being se nt to him by Allied.

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United States of America v . Hernande z Her nandez also arg ues that the district court err ed by repe atedly questioning a juror about her

v erdict befor e requiring the jury to continue deliberations. Be cause Her nandez did not raise thi s objection in the district court, we revie w for plain err or only

. See United States v. Simpson , 430 F.3d 1177, 1183 (6th Cir. 2005). We conclude that the district court did not err , plainly or otherwise, in questioning the jur o r b ecause the questions wer e aimed at clea ring up ambig uity in whether she ag ree d with the verdic t. See Fe d. R. Crim. P. 31(d); King v. Ford Motor Co. , 209 F.3d 886, 896 (6th Cir. 2000). The district court d i d n o t i m p roper ly forc e the juror to cast her vote in open court without further de liberation in the jury room. See King , 209 F.3d a t 896. Acc ording ly , we a ffirm the district c ourt’s judg ment.

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